Committeeship (Script 426)

From Clicklaw Wikibooks

The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. This script gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call the Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

What is a committee?

A committee (pronounced caw-mi-tay, or caw-mi-tee, with emphasis on the end of the word) is a person appointed by the BC Supreme Court to make personal, medical, legal, or financial decisions for someone who is mentally incapable and cannot make those decisions.

Anyone who suffers from a mental illness or handicap, a head injury, a degenerative disease or some other kind of disability may not be able to make decisions about their personal, medical, financial, or legal affairs. They may be unconscious and unable to decide anything, including where and how to live. They may lose track of bank accounts, forget to pay bills, or be taken advantage of by dishonest people. In these cases, a committee is one possible solution. Appointing a committee is a very serious step because it takes away a person's right to decide things for themselves. It is usually a last resort when nothing else will work.

A committee of the person makes personal and medical decisions for someone who is not mentally capable, including decisions about where the person will live. Usually a family member or close friend will do this. Rarely, the Public Guardian and Trustee will agree to be committee of the person. Only the court can appoint a committee of the person.

A committee of the estate makes financial and legal decisions for someone who is not mentally capable. A family member or close friend, a trust company, or the Public Guardian and Trustee of British Columbia can fill this role. A committee of the estate can be appointed by the court. The Public Guardian and Trustee can also be appointed as committee of the estate by a certificate of incapability under the Patients Property Act. But no one else can be appointed this way.

Committees appointed by the court (other than the Public Guardian and Trustee) are sometimes called private committees. The Public Guardian and Trustee may apply to court to be the committee if there are no suitable friends or family willing to act (see details below).

How and when could you become a committee?

You might want to be a committee if one of your family members or close friends has lost the mental capacity to make important decisions and you want to help.

To become a committee, you must apply to the BC Supreme Court to be appointed by an order under the Patients Property Act. But first, you have to know whether the person is mentally incapable. To figure this out, you can talk to the person's doctor. If the doctor believes the person can't manage their affairs, or themselves, then you can see a lawyer.

A lawyer can help you with the paperwork, including affidavits, (or sworn statements), of two doctors licensed in BC, saying that the person is not capable of managing themselves or their affairs. If you're applying for committee of estate, the doctors’ statements must say the person is not able to manage their financial and legal affairs and explain why. If you're applying for committee of person, the doctors' statements must say the person cannot manage their personal and medical decisions and explain why.

Unless the doctors swear that it would be harmful to the person, you or your lawyer must notify the person that you have applied to be their committee. Sometimes the person will oppose the application. You should also notify family members, and if you can, get their consent to your application.

Give the lawyer as much information as you can about the medical condition and financial affairs of the person. Because of privacy laws, some financial institutions may not want to give you information. When the paperwork is ready, the lawyer will apply to court for an order to appoint you as committee.

Depending on the size of the estate (all of a person's property, including income) and all the circumstances, the court may order you, as committee, to post a security bond to protect the person's assets. Or the court may restrict your access to the person’s assets. The person's estate usually pays the cost of the bond and all other expenses to manage the estate.

If the person becomes capable again, they or you can apply to court to cancel your appointment as committee. You may have to pass the final accounts for the person’s estate before the court – unless the person agrees you do not have to.

The Public Guardian and Trustee reviews all applications for committee – see below for details on the Public Guardian and Trustee.

Choosing, or nominating, your own committee

As long as you're mentally capable, you can name, (or nominate), someone you want to be your own committee, in case you ever need one. Then, if you become mentally incapable, the court will appoint that person unless there's a good reason not to. You should see a lawyer if you want to do this because you have to follow certain procedures and there are specific requirements for the nomination document.

What powers and duties do you have as a committee?

Generally, as committee, you have the same powers to deal with the person's estate and affairs as the person has when they are capable. But there are some things you can't do: for example, you can't make a will or estate plan for the person, vote on their behalf, or consent to marriage for them.

Everything you do must be in the person’s best interests. You have what is called a fiduciary responsibility. This means that you must put the person’s interest ahead of yours and you cannot mix your assets with theirs. You must never put yourself in a conflict-of-interest position. These are important duties and you should not take on the task lightly.

The court can restrict your powers. For example, it might say you can't sell any of the person's real estate without first getting its permission or the consent of the Public Guardian and Trustee. Or the court may restrict your access to an investment so that you can access the income from the investment, but not the investment itself. But otherwise, it will be up to you to handle the person's estate, always keeping in mind the needs of the person and their family.

The Trustee Act controls what you can invest in. If you invest in things the Trustee Act does not allow, you may have to pay the estate for any losses. The law says you have to be a prudent investor. This means you cannot invest in high-risk or speculative things. You may want to get professional advice before you make any investment decisions.

Normally, you can't use the person's property or get any benefit from it. There are exceptions to this—for example, when a husband or wife is committee for their spouse. A husband who becomes incapable must still help support his wife and children. So if his wife is the committee, she can use some of his assets or income for her own living expenses. If you are a committee and believe you can use the person's assets or income to support a family member or yourself, you should first check with the Public Guardian and Trustee or your lawyer.

Your responsibilities as a committee of the estate can include:

handling the person's property

doing the person's banking

paying the person's expenses

budgeting for the person's family

selling the person's personal property and real estate

entering into contracts for the person and operating the person's business

dealing with any lawsuits involving the person

filing the person's income tax returns

applying for the person's pension and other benefits

You have to keep detailed records, (or accounts), of all the person’s assets, liabilities, and money coming in and going out of the person's estate. You will have to give periodic accountings to the Public Guardian and Trustee and they will review and decide whether to pass (or accept) them. The Public Guardian and Trustee decides how often you have to file these accountings – it could range from every six months to every five years. The Public Guardian and Trustee also reviews reports of abuse or mismanagement by the committee.

Your responsibilities as committee of the person can include making medical decisions for the person and deciding where and how the person should live.

The Public Guardian and Trustee has the necessary forms, samples of accounts you must keep, and a handbook for private committees on its website. For more information, or to ask them to send you these documents, call 604.660.4444 in the lower mainland. Elsewhere in BC, call Service BC at 1.800.663.7867 and ask for the Public Guardian and Trustee. You can also email the office at mail@trustee.bc.ca.

You can hire professional help for tasks that require expert advice or work, but not for things that an ordinary person could do. The person's estate can pay reasonable amounts for these expenses.

Are you paid as a committee of the estate?

The person's estate can pay you a reasonable fee for your service as committee of the estate. The size of your fee depends on the size of the estate and how much work you must do to manage it. The Public Guardian and Trustee sets your fee for acting as committee when it approves your accounts.

Keep written records of the work you do and the time you spend on the estate. Include them when you submit your accounts to the Public Guardian and Trustee. You can pay from the estate any reasonable, out-of-pocket expenses, including professional fees for duties you cannot handle yourself.

The Public Guardian and Trustee of British Columbia

The Public Guardian and Trustee is an entity independent of the BC Government, with an office at 700-808 West Hastings Street in Vancouver. One of its duties is to act as committee when no one else can do it, or when there is a conflict—usually among family members. It charges a fee, set by regulation, for this service. If a committee is needed and you cannot be it, or if there is a family conflict, you should contact the Public Guardian and Trustee.

The Public Guardian and Trustee also reviews all applications to appoint a committee to ensure they are reasonable and appropriate and that the person applying is suitable. The Public Guardian and Trustee then makes recommendations to the court about the application.

The Public Guardian and Trustee also reviews all private committee accounts and sets the committee payment.

Committee compared to power of attorney

Although a power of attorney might seem easier than a committee order, a person must sign it while still mentally capable of making that type of decision. So it doesn't work if a person is already incapable. And a power of attorney becomes invalid when the person who gave it becomes mentally incapable, unless the power of attorney has a term called an enduring clause. An enduring clause means the power of attorney continues if the person becomes mentally incapable. Finally, a power of attorney deals with legal and financial things but not with personal and medical issues. Script 180, called “Power of Attorney and Representation Agreements”, has more information on this.

Other options – four laws to promote adults’ rights to care for themselves

BC has the following four laws to promote adults’ rights to care for themselves. The laws aim to help people who can't make their own decisions or who could be taken advantage of by dishonest people:

These laws provide other ways, besides a committee order, to deal with mental incapacity, such as representation agreements and powers of attorney (script 180).

Agreement to administer federal pension benefits by private trustee—if a person who becomes mentally incapable has no assets or property besides some type of federal pension (Canada Pension Plan or CPP, Old Age Supplement or OAS, Guaranteed Income Supplement, Veteran's Pension) then this option may be cheaper and simpler than a committeeship. Service Canada has more on this. Call it for information on CPP and OAS disability benefits at 1.800.277.9914. The form for this agreement is on the Service Canada website under the link called Forms.

Summary

A committee is a person, trust company, or the Public Guardian and Trustee appointed by the court to manage the affairs of a person who is mentally incapable of doing so. A committee must act in the person's best interests and generally has the same power over the person's estate as the person has when they are capable. Appointing a committee is a serious step because it takes away a person's right to decide things for themselves.